caballero v fuerzas armadas revolucionarias de colombia · 2020. 12. 11. · caballero v fuerzas...

Caballero v Fuerzas Armadas Revolucionarias DeColombia

2020 NY Slip Op 34026(U)December 4, 2020

Supreme Court, New York CountyDocket Number: 154864/2020

Judge: Lucy BillingsCases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New YorkState and local government sources, including the New

York State Unified Court System's eCourts Service.This opinion is uncorrected and not selected for official

publication.

FILED: NEW YORK COUNTY CLERK 12/08/2020 09:12 AM INDEX NO. 154864/2020

NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/07/2020

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 ----------------------- - --------------x

ANTONIO CABALLERO,

Plaintiff

- against -

FUERZAS ARMADAS REVOLUCIONARIAS DE COLOMBIA, a/k/a/ FARC-EP a/k/a REVOLUTIONARY ARMED FORCES OF COLOMBIA, and NORTE DE VALLE CARTEL,

Defendants

------------------------------------ --x

LUCY BILLINGS, J.S.C.:

Index No. 154864/2020

DECISION AND ORDER

Plaintiff's action seeks to enforce a federal judgment from

the Southern District of Florida, now domesticated in New York by

the Erie County Clerk. C.P.L.R. § 5018(b). Plaintiff moves for

a declaratory judgment, C.P.L.R. § 3001, that Julio Cesar Alvarez

Montelongo and Rafael Marquez are agents or instrumentalities of

defendant Fuerzas Armada Revolucionarias de Colombia (FARC) under

28 U.S.C. § 1610 n., so that plaintiff may enforce his judgment

against them. Kirschenbaum v. 650 Fifth Ave., 830 F.3d 107, 132-

33 (2d Cir. 2016).

The federal district court for the Southern District of

Florida determined that defendants FARC and Norte de Valle. Cartel

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are narcoterrorist organizations engaged in international

terrorism and entered a final judgment against them in

plaintiff's favor. A terrorist organization includes any

organization designated as a Foreign Terrorist Organization under

8 U.S.C. § 1189, any organization designated in the Federal

Register as a terrorist organization, or a group of two or more

individuals who engage in terrorist activities. 8 U.S.C. §

1182(a) (3) (B) (iv); Kirschenbaum v. 650 Fifth Ave., 830 F.3d at

131-33. An agent or instrumentality of a terrorist organization

such as FARC includes a person who materially assisted in,

provided financial or technical support to, or provided

merchandise or services in support of the international narcotics

trafficking activities of a narcotics trafficker such as FARC or

was controlled by or acted for a narcotics trafficker.

Kirschenbaum v. 650 Fifth Ave., 830 F.3d at 135; Stansell v.

Revolutionary Armed Forces of Colombia, 771 F.3d 713, 724 n.6,

731-32 (11th Cir. 2014).

To establish that Montelongo and Marquez both are agents or

instrumentalities of FARC, plaintiff presents an affidavit by

John Robert McBrien, the former Associate Director for Global

Targeting in the Off ice of Foreign Assets Control (OFAC) of the

United States Department of the Treasury. Aff. of Nicholas

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Rostow Ex .. A. McBrien attests that Montelongo and Marquez are

FARC's agents or instrumentalities based on two OFAC publications

and a United States Department of the Treasury press release in

August 2017, which identified individuals and entities linked to

the Flores Drug Trafficking Organization (DTO) , including

Montelongo and Marquez and entities linked to them, which do not

include FARC. Aff. of John Robert McBrien (Rostow Aff. Ex. A)

Exs. D-F. While the court may take judicial notice of these

documents published on the United States Department of the

Treasury's website, People v. Schreier, 22 N.Y.3d 494, 498 n.

(2014); Travelers Prop. Cas. Co. of Am. v. Archibald, 124 A.D.3d

480, 481 (1st Dep't 2015); LaSonde v. Seabrook, 89 A.D.3d 132,

137 n.8 (1st Dep't 2011); L & Q Realty Corp. v. Assessor, 71

A.D.3d 1025, 1026 (1st Dep't 2012), this evidence does not

establish that Montelongo or Marquez is FARC's agent or

instrumentality. The evidence shows only that Montelongo and

Marquez are linked to the Flores DTO.

The evidence does not show that the Flores DTO is an agent

or instrumentality of FARC, as neither the OFAC documents nor the

United States Department of the Treasury press release mentions

FARC. At most, plaintiff establishes a strategic alliance

between Raul Flores Hernandez, the leader of the Flores DTO, and

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the leaders of the Sinaloa Cartel, McBrien Aff. Ex. F, at 1,

which Caballero v. Fuerzas Armadas Revolucionarias de Colombia,

No. 12-48803, slip op. at 1 (11th Judicial Fla. Cir. Ct. Nov. 18,

2014), found was an agency or instrumentality of FARC in 2014.

Montelongo's and Marquez's link to the Flores DTO and an alliance

between the Flores DTO and the Sinaloa Cartel, which was an agent

or instrumentality of FARC in 2014, does not necessarily

establish that Montelongo and Marquez are agents or

instrumentalities of FARC in 2020.

McBrien also attests that OFAC blocked assets linked to

Montelongo and Marquez, McBrien Aff. ~~ 34, 35, based on the

"Revised Guidance on Entities Owned by Persons Whose Property and

Interests in Property Are Blocked," published by the United

States Department of the Treasury August 13, 2014. Id. Ex. 0.

"Blocked" persons are persons who own "blocked" assets, which the

United States has seized or frozen under 50 U.S.C. §§ 1701-1702

or 50 U.S.C. App. § 5(b). 28 U.S.C. § 1610 n.; Kirschenbaum v.

650 Fifth Ave., 830 F.3d at 137; Stansell v. Revolutionary Armed

Forces of Colombia, 771 F. 3d at 723. The ·court similarly may

take judicial notice of the Revised Guidance on the Department of

the Treasury's website. People v. Schreier, 22 N.Y.3d at 498 n.;

Travelers Prop. Cas. Co. of Am. v. Archibald, 124 A.D.3d at 481;

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LaSonde v. Seabrook, 89 A.D.3d at 137 n.8; L & Q Realty Corp. v.

Assessor, 71 A.D.3d at 1026.

This evidence, however, shows only that OFAC may "block"

individuals, entities, and assets pursuant to an Executive Order

or OFAC regulations and not that Montelongo and Marquez are

blocked individuals, are associated with blocked entities, or own

blocked assets. McBrien Aff. Ex. 0. Moreover, even if plaintiff

established that the United States Department of the Treasury

blocked Montelongo and Marquez, their associated entities, or

their assets, no evidence indicates that such a designation

originated from a connection to FARC, rather than for an entirely

separate reason.

In total, plaintiff's combined evidence does not establish

that Montelongo or Marquez assisted in, provided support to, were

controlled by, or acted for FARC or its international narcotics

trafficking activities, to qualify as its agent or

instrumentality under 28 U.S.C. § 1610 n. Plaintiff fails to

present evidence, from OFAC's website or otherwise, identifying

Montelongo or Marquez as FARC's agent or instrumentality, or

showing a direct connection between FARC and Montelongo or

Marquez. Because plaintiff has failed to establish that Julio

Cesar Alvarez Montelongo or Rafael Marquez is an agent or

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instrumentality of defendant Fuerzas Armada Revolucionarias de

Colombia (FARC) under 28 U.S.C. § 1610 n., the court denies

plaintiff's motion for a declaratory judgment declaring that

Montelongo and Marquez are agents or instrumentalities of FARC,

without prejudice to a future motion presenting such evidence.

C.P.L.R. § 3001.

DATED: December 4, 2020

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LUCY BILLINGS, J.S.C.

LUCY BILLINGS J.S.C

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caballero v fuerzas armadas revolucionarias de colombia · 2020. 12. 11. · caballero v fuerzas...

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